This was an action of assumpsit, determined in the Pulaski circuit court, in January, 1844, before the Hon. J. J. Clendenin, one of the circuit judges. John W. Walker sued Sandford C. Faulkner and Samuel D. Walker, on a bill of exchange, drawn by R. R. Moss, J me 17th, 1839, at Cincinnati, on John Siandeford, at New Orleans, payable at 6 months, to S. C. Faulkner, for $>2,500, at the Canal Bank of New Orleans: endorsed by Faulkner to S. D. Walker, and by him to the plaintiff; accepted by Standeford, and protested for non-payment; of which the declaration alleged the defendants had notice. The case was once tried by a jury, who found against Faulkner, and for his co-defendant, Walker, on which judgment was entered for one and against the other. On this trial, the plaintiff offered in evidence certain depositions taken after a notice, served' by reading to one of the defendant’s attorney, which depositions were excluded and he excepted. Faulkner then moved for a new trial, which was granted him. The case was then again tried, and verdict and judgment for the defendants. On the trial, the plaintiff offered the bill of exchange in evidence, of which a copy is here subjoined:

$2,500. Cincinnati, June 17th, 1839.

Six months after date, pay to the order of S. C. Faulkner, two thousand five hundred dollars, value received, which place to account of Your friend,

To Mr. John Standeford. ' R. R. MOSS.

Payable at Canal Bank.

Accepted and endorsed as alleged in the declaration. The defendants objected to its introduction, on the ground, that there was a variance between the bill and its description in the declaration, inasmuch as the words, “payable at Canal Bank,” were no part of the bill. The plaintiffs showed, that on the former trial the bill had been read without objection. The court sustained the objection, and excluded the bill, which being the foundation of his action, he offered no further evidence, but excepted. The case came up on error.

Where a deposition has once been read in evidence without opposition, it cannot be objected to as being irregularly taken. Evans vs. Hettick, 3 Washington's ct. ct., Rep. 401. 7 Wheaton, 453. By parity of reasoning, if the bill of exchange in this case was mere evidence, having been once admitted without objection, it could not afterwards be objected to.

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